Today in History (1862) - The U.S. government forbids all Union army officers from returning fugitive slaves, thus effectively annulling the Fugitive Slave Law of 1850 and setting the stage for the Emancipation Proclamation. On the same day in 1865, the Confederate Congress voted to enlist 300,000 black troops, granting them freedom with the consent of their owners. Lee surrendered a few weeks later.

March 02, 2008

After Hiatus, Back to Con Law

by PG

I encountered Erwin Chemerinsky in his professorial (as opposed to author/ litigator/ talking head) capacity for the first time in his videotaped BarBri lecture on constitutional law, one of a few subjects in which none of the lecture felt like it was introducing brand new material, and the first subject in which I could remember the names of the relevant cases as I went through the outline. The lecture helpfully tipped us off to how to apply con law to multiple choice questions; for example, Chemerinsky noted that when the question asks who is the "best plaintiff" out of a group in which no one seems to have standing for certain, the answer is the plaintiff who suffered personal economic loss. Because it's probably the area of bar-tested law that I know best, however, some of the summaries puzzled me.

For example, with regard to third party standing Chemerinsky said that such standing is allowed if there is a close relationship between the plaintiff and the injured third party. His example was the doctor-patient relationship that permitted abortionists to assert their patients' rights to challenge restrictions on abortion. Hence the line of abortion cases that followed Roe mostly have plaintiffs like Planned Parenthood, Dr. Franklin, Akron Center for Reproductive Health, Dr. Simopoulos, American College of Obstetricians and Gynecologists, Dr. Carhart.

But these abortion providers were themselves at risk of criminal prosecution for violating the abortion restrictions, which violations could entail losing one's medical license and serving prison time, as Dr. Simopoulos did. So it was actually the physician plaintiff's liberty or property that was at risk from enforcement, while it was the third party's -- the aborting woman's -- right that was at issue. Similarly, it was the beer vendor in Craig v. Boren whom the Court found to suffer "injury in fact," because she would be punished by the state if she sold to men under 21.

Thus a "close relationship" between the parties is not sufficient. There must be a close relationship between the right sought to be vindicated, and the inability to exercise the right if someone (physician, beer-seller, et al.) will be legally sanctioned for violating the statute. If we flipped the proposals of people like Fred Thompson and punished the abortion-seeker rather than the abortionist, the latter would cease to have standing to bring suit, because he no longer would face any penalties under the law.

Videotape? Hmmm... that's too bad. West Coast BarBri gets Chemerinski in person for a day, and those who had him this February said it was spectacular. Anyway, hope the bar wasn't too psychically damaging...